Last month, I attended the World Medical Association (WMA) General Assembly at Tbilisi, Georgia. One of the sessions during the meet discussed mercy killing, a controversial and much debated issue. This reminded me of the practice of senicide, which is the abandonment to death, suicide or killing of the elderly (Wikipedia). The term originates from the Latin word “senex”, which means “old” and “cide”, which means “killing”.
In India, senicide is practiced in some parts of southern districts of the state of Tamil Nadu as Thalaikoothal, which is the traditional practice of senicide (killing of the elderly) or involuntary euthanasia, by their own family members.
Thalaikoothal is a Tamil word which means “leisurely oil bath”. The customary rituals are:
- The body is massaged with 100 mL each of coconut, castor and sesame oils, usually at dawn. After this, the person is given a cold bath and put to bed resulting severe hypothermia. After 15 minutes, the person is made to drink a few glasses of tender coconut water and a glass of milk.
- The person is given a glass of mud mixed with water or, a piece of murukku, a savoury, would be forced down the throat, which blocks the food pipe. Water with soil or mud from the land owned by the terminally ill person is used with the notion that the terminally ill person is attached to his/her materialistic possession. This water mixed with the mud is fed to the ailing individual several times until the death occurs.
- Pesticides celphos (aluminum phosphide), sleeping pills (Valium) and lethal injections have become part of it.
- The terminally ill person is given an oil bath using gingelly oil and cold water several times in a week.
- Tender coconut water, “Theertham” – holy water, from different temples and Kasi temple and the holy water used for bathing the deity in a temple are all used for such rituals.
- Force feeding cow's milk while plugging the nose, causing breathing difficulties (the "milk therapy") or use of poisons.
- The pesticide Thimet 10 G, a dark granulated organic solvent, or Kurnamarunthu, as the villagers call it, is mixed in tea or water and administered.
All these rituals hasten death by causing hypothermia, renal failure and aspiration pneumonia, etc.
India is a vast country and the cultures, traditions, customs, languages, faiths, etc. vary from one part of the country to the other. Everyone has the right to freely practice their customs, etc., which is protected by the Article 25 of the Constitution of India.
Customs are one of the sources of law. The Hindu Code defines custom and usage as “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law (among Hindus) in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.”(Section 3(a) of The Hindu Marriage
But does a custom that has been practiced by people ipso facto gain legality?
Some criteria must be met, before a custom can be accepted as valid law (European Researcher. 2014;87(11-2):
- “Custom to become law must be immemorial.
- It must be reasonable.
- There must be continuous performance of it.
- The enjoyment of custom must be peaceful one.
- Custom must be certain and definite.
- A custom will be valid if it is compulsory to perform.
- It must be general or universal.
- In addition, it should not be opposed to public policy.
- Custom should not be in conflict with the statutory law.”
Article 13 of the Constitution also includes customs and considers “laws inconsistent with or in derogation of the fundamental rights” as void or null, if they are in conflict with the Constitution of India.
Thalaikoothal is not a universal custom in the sense that it is practiced only in some parts of Tamil Nadu and not throughout the country. Hence, it is a local custom and not a general custom. Moreover, it is also violative of the fundamental right to life as guaranteed under Article 21 of the constitution of India, which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Evidently, the Right to life under Article 21 does not include the Right to die.
How does the law view the issue of “Right to die”?
The question regarding right to die first time came up before the Bombay High Court in the matter of State of Maharashtra v. Maruti Shripati Dubal 1987 Cri LJ 743. The Bombay High Court ruled that the right to life guaranteed under Article 21 includes right to die, and thus making Section 309 of Indian Penal Code (IPC), 1860 which makes attempt to suicide as punishable offence, as unconstitutional.
The Supreme Court also affirmed that under Article 21, right to life also includes right to die in P Rathinam v. Union of India 1994 AIR 1844, 1994 SCC (3) 394. It held that “that Section 309 violates Article 21, and so, it is void”.
But in 1996, in Gian Kaur v. State of Punjab (1996)2 SCC 648, a five-judge Constitutional Bench of the Supreme Court overturned the decision in the P Ratinam case and held that “Article 21 does not include the right to die” and “that Section 309 IPC is not violative of either Article 14 or Article 21 of the Constitution”.
“…'Right to life' is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech, etc. to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'… The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life… But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life...”
In Aruna Ramchandra Shanbaug versus Union of India (2011)4 SCC 454, the Supreme Court recognized the right to die with dignity and allowed a living will; at the same time, it set out strict guidelines that will govern when and how it will be permitted. “The 'right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death”.
This issue was re-examined in the Common Cause versus Union of India, 2018 (5) SCC 1, where the Hon’ble 4-Judge Constitution Bench of the Supreme Court upheld the aforementioned judgment in Aruna Shanbaug case “(vii) We are thus of the opinion that the right not to take a life-saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life-saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.”
The law protects the doctor, if he or she takes a professional decision to withhold treatment in terminally ill patients or those in a persistently vegetative state, if it is convinced that the doctor has acted in such a case in the best interest of the patient and in bonafide discharge of the duty of care. “A decision not to prolong life beyond its natural span by withholding or withdrawing artificial life support or medical intervention cannot be equated with an intent to cause death.”
Suicide and euthanasia or mercy killing are not the same. A suicide is an act done by the person himself (self-decision); while in euthanasia, the act is done by a third party (decision taken by another person).
Even in State of Maharashtra v. Maruti Shripati Dubal, the High Court recognized the difference between mercy killing and suicide and considered it as homicide. “Euthanasia or mercy-killing on the other hand means and implies the intervention of other human agency to end the life. Mercy-killing thus is not suicide and an attempt at mercy-killing is not covered by the provisions of S. 309. The two concepts are both factually and legally distinct. Euthanasia or mercy-killing is nothing but homicide, whatever the circumstances in which it is effected. Unless it is specifically excepted it cannot but be an offence.”
In Naresh Marotrao Sakhre v. Union of India 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850, the Bombay High Court stated that “Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected. Unless it is specifically excepted it cannot but be an offence. Our Penal Code further punishes not only abetment of homicide but also abetment of suicide.”
Till recently, attempt to suicide was considered a crime under Section 309 IPC “Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year.”
In 2011, the Supreme Court recommended to Parliament to consider the feasibility of deleting Section 309 from the statute. Even though the section has not been removed, the Mental Healthcare Act, 2017 and the rules under the act have effectively decriminalized attempted suicide with effect from July 2018.
The relevant provision of the Mental Healthcare Act, 2017, which commenced in July 2018 states, “Notwithstanding anything contained in Section 309 of the IPC any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”
India has decriminalized attempt to suicide; but, abetment of suicide is still a criminal offence under Section 306 “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Active euthanasia is an offence under Section 302 (punishment for murder) or under Section 304 (punishment for culpable homicide not amounting to murder). “302. Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.”
“304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
In conclusion, right to life is an inalienable right. It does not include right to die.
A reasonable inference can therefore be drawn that any unnatural termination of life is illegal, be it euthanasia (or mercy-killing) or any other. And, it is only recently that passive euthanasia (living will), but not active euthanasia, has been granted legal sanction under Indian law, but subject to certain conditions.
Thalaikoothal is illegal and unethical as generally the victims of Thalaikoothal are terminally ill or in a vegetative state, with families taking a decision in most cases.
“(iv) Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering” (Common Cause versus Union of India, 2018)
The jury is still out on this.